303 / 336
burden and handicap. The State, therefore, while
recognising and safeguarding the right, permitted each
woman to decide for herself, in accordance with her
own circumstances and special responsibilities, whether
service on a jury was a right she ought to exercise or a
burden she ought to undertake. He could not see how
this could be regarded as an invidious discrimination.
The right to jury trial meant the right to be tried
by a jury drawn indiscriminately from those eligible
for jury service. This did not entitle an accused person
to have a jury of a particular composition or in his or
her view of a particular suitability in relation to the
offence charged.
In his view the arguments against the validity of the
Juries Act, 1927, based on sex discrimination, failed.
The Chief Justice, however, said, in relation to the
provisions of the Act which laid down a minimum
property qualification, that he would allow the appeal.
Irregularity in confining jurors to ratepayers
With regard to the thousands of criminal trials which
in fact had been held since the enactment of the
Constitution, the Chief Justice said the fact was that
the trial had been trial by jury and no person served
on such juries who was not eligible. An irregularity
had, in his view, taken place in the manner in which
citizens had been called to jury service, in the same way
as an irregularity took place in the manner -in which
the ballot papers were numbered for parliamentary
elections up to the dec
:
sion in
McMahon v. the Attor-
ney-General—
(1972) I.R. In McMahon's case the
courts were not asked to entertain any suggestion that
such irregularity invalidated previous elections nor
could such a submission, in his view, have been success-
fully made.
The Decision of Pringle J., reported in the July-
August Gazette, 1973, at page 164 is accordingly re-
versed.
Note: The proceedings against the plaintiffs were
subsequently not proceeded with.
[De Burca and Anderson v. the Attorney General—
Full Supreme Court—Separate judgment by each Judge
—dissenting judgment as to women jurors by CHiggins,
C.J.—unreported—12 December 1975.]
Prisoners may speak in prison in private with their
Solicitor.
Mr. Myles P. Shevlin, solicitor, as a result of a
Supreme Court decision is to be allowed to consult with
two clients in Mountjoy Prison—out of the hearing of
prison officers.
The court of five Judges unanimously dismissed an
appeal by the Governor of Portlaoise Prison against a
decision of Mr. Justice McMahon in the High Court
directing the Governor to make facilities available to
enable Mr. Shevlin to consult with his clients, John
Vincent Walshe and Brian McGowan, in the sight but
not in the hearing of any prison officer.
Mr. Walshe and Mr. McGowan, who had brought
the original application for an order of
mandamus
against the Governor, have been remanded in custody
by the Special Criminal Court on charges in connection
with the kidnapping of Dr. Herrema.
The Chief Justice, Mr. Justice O'Higgins, in his
judgment, said the affidavits filed on behalf of the
Governor disclosed the reason why Mr. Shevlin was
refused the ordinary facility accorded to a legal adviser
visiting his clients, that was, to talk to his clients in the
sight but not in the hearing of a prison officer.
Allegation
On January 20th, 1975, Mr. Shevlin had been ad-
mitted on a professional visit to Portlaoise Prison to see
two prisoners, Kevin Mallon and J. B. O'Hagan. It was
contended and alleged, on behalf of the Governor, that
on this occasion Mr. Shevlin attempted to smuggle out
from one of these prisoners, Kevin Mallon, a letter or
communication addressed "Marian" and that, on this
attempt being discovered, Mr. Shevlin burned the letter
or communication concerned in a gas fire.
The Chief Justice said that as a result of this inci-
dent, and having considered reports from the officers
concerned, the Minister for Justice issued a directive to
all prison governors to the effect that the facilities
granted as a matter of course to legal advisers visiting
prisoners could not be safely granted to Mr. Shevlin,
and that each application from him for such facilities
should be considered separately from the security point
of view, having regard to the prisoners involved.
"In other words, and in no uncertain manner, Mr.
Shevlin was to be regarded and treated as a serious
security risk," said the Chief Justice.
Prison Rules 30 years old should be amended
It was not possible in these proceedings to determine
whether the allegations made against Mr. Shevlin were
justified and, in his view, it was not necessary to con-
sider how far and to what extent the facts alleged
against him had been controverted or put in issue by
him.
Referring to the Government of Prison Rules, 1947,
the Chief Justice said that nearly 30 years had passed
since the rules were made, and even a casual glance
over the topics and subjects dealt with would indicate
a need for some revision and amendment. It was, how-
ever, for a Court to deal with the law as it was, not as
it might be, and he was bound to look at these statu-
tory rules as they were and then to decide to what
extent they applied to and resolved the matters in
dispute in these proceedings.
He said that in his opinion, the plain meaning of
Rule 210 was to give an unqualified right to a prisoner
awaiting trial to have access on any weekday, at any
reasonable hour, to. his legal adviser, and to consult
with him in the sight but not in the hearing of a prison
officer. No other rule qualified or limited this right.
"As long, therefore, as Mr. Shevlin is a solicitor in
practice, and is retained as such by the prosecutors,
and acts as such and in no other capacity or for no
other purpose, he ought to be admitted to the prison
to see his clients who are the prosecutors in this case,"
said the Chief Justice.
To suggest that the men's rights in this regard could
be satisfied by permitting them to see Mr. Shevlin in
the sight and hearing of a prison officer was without
question a direct contradiction of what the rules pro-
vided. He would dismiss the appeal and affirm the High
Court decision.
Mr. Justice Henchy said that in his opinion the
Governor had no power to attach any condition to a
permission for a visit to a legal adviser.
[The State (Walshe and McGowan) v. The Gover-
nor of Portlaoise Prison and the Attorney General—
Full Supreme Court—unreported—
12
December
1975.]
.296